Saturday, October 4, 2003

Unlike any other governmental body in the state, the Texas Supreme Court is allowed to vote secretly when it decides whether to consider cases appealed from lower courts.

Supreme Court's secrecy at issue.

Dispute involves decisions about which cases justices will hear

By David Pasztor, AMERICAN-STATESMAN STAFFSaturday, October 4, 2003

SAN ANTONIO -- Unlike any other governmental body in the state, the Texas Supreme Court is allowed to vote secretly when it decides whether to consider cases appealed from lower courts.

That notion seemed to bother U.S. District Judge Orlando Garcia on Friday as he heard the first round of arguments in a lawsuit that seeks to force the state's highest civil court to tell the public how its nine justices weigh in when picking the cases they will hear.

Garcia gave no indication how he might rule on a request by the state attorney general's office to dismiss the lawsuit, and he gave both sides another month to provide him with more information.

"It appears the Supreme Court is the only public body that in effect gets to vote on something and that vote is never reported publicly," Garcia told Assistant Attorney General James Todd, who represented the justices at the hearing. "Why should they be immune or excluded from that simple concept?"

That question underpins a lawsuit brought more than a year ago by a group of lawyers, public interest lobbies and the Texas Observer newspaper trying to end the court's longstanding practice.

The court receives about 900 appeals each year from the state's 13 intermediate appellate courts but agrees to accept only about 10 percent of the cases, according to research by Texans for Public Justice, one of the plaintiffs in the suit. Four justices must agree to accept a case on civil matters ranging from insurance disputes to the rights of minors seeking abortions.

There are no constitutional grounds for requiring a public record of votes, Todd said. The court, or the Legislature, could enact such a policy, he said, but the law doesn't compel it. The judiciary also is exempt from the state's open records laws.

Deciding not to take a case is as important as any opinion that might be issued in cases that are accepted, the suit argues. And since the justices are elected in partisan races, their campaigns largely funded by law firms that practice before the court, the public has a right to know how the justices are voting, the suit says.

"These are decisions which, as elected officials, the Texas Supreme Court must be accountable for," argued Bonnie Tenneriello, a lawyer with the Boston-based National Voting Rights Institute, a nonprofit legal center that is helping pursue the case. "These are public servants who are elected."

But Todd argued that judicial deliberations have historically been allowed more secrecy than other branches of government enjoy to help shield the independence of judges.

"The exercise of judicial discretion has to be sheltered more," Todd told the judge.

The U.S. Supreme Court and the high courts of about 35 other states also do not disclose their votes, Todd said.

Garcia, however, repeatedly pressed Todd on why the Supreme Court should be treated differently from school boards, city councils, the Legislature and other government bodies that are required to let the public know how they vote.

"This is the only official vote by an official body not open to public scrutiny," Garcia said.

Chief Justice Tom Phillips, who is named in the lawsuit along with the eight other justices but who did not attend the hearing, said characterizing the decisions as votes is a misnomer.

There usually are no formal roll call or written votes recorded when the decisions are made, Phillips said. The justices meet in conference to discuss the cases, "and we try to reach a consensus."

Sometimes formal record votes are taken, but more often they are not, Phillips said, once the will of the court is discernible from the discussions.

"The U.S. Supreme Court and most courts follow our procedure, and I think there's a very good reason for it," he said.

Taking formal votes on each case would slow down the court's work, Phillips said, and revealing them would serve little public purpose.

"I think that there's very little to be gained in terms of the public knowing who wanted to hear a case and a lot of mischief to be manufactured by it," he said.

Garcia did not say when he will decide whether to let the lawsuit continue but did hint that if he does allow it to proceed, it will be a tough case to win.

"You have a difficult burden in this case," Garcia told Tenneriello at the end of the hearing.